{"id":27834,"date":"2016-05-18T15:01:05","date_gmt":"2016-05-18T19:01:05","guid":{"rendered":"http:\/\/sidebarforplaintiffs.naomifein.net\/?p=27834"},"modified":"2016-05-18T15:01:05","modified_gmt":"2016-05-18T19:01:05","slug":"three-cheers-and-ancillary-laughter-for-an-nlrb-decision","status":"publish","type":"post","link":"https:\/\/sidebarforplaintiffs.naomifein.net\/?p=27834","title":{"rendered":"Three cheers (and ancillary laughter) for an NLRB decision"},"content":{"rendered":"

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I haven’t been giving you a lot of Lowering the Bar lately because its format has changed and has become impossible for me to link to.<\/p>\n

So…here’s an entire Kevin Underhill post I must pass on. First, as is Underhill’s wont, it’s hilarious–in several different ways (it makes reference to Monty Python; how could that be bad?).<\/p>\n

Second, it’s actually an important example of how a government agency, in this case the National Labor Relations Board, helps us individual blokes who work for a company and feel that we must obey company rules. But also, blessed thing, belong to a union. Which brought this complaint to the NLRB.<\/p>\n

The NLRB issued a thumbs-down decision on a communications company’s Happiness Rule requiring employees to be, well, positive. Keeping a “positive” atmosphere rolling around at all times.<\/p>\n

Some job description! Immediately a YouTube video pops up in my mind of grinning automatons racing around an office, greeting clients with, “Good happy day to you and yours!” Or being tortured in a back room.<\/p>\n

Shudders.<\/p>\n

Below the little thing I stuck in here to separate my comments from Kevin’s is the entire Kevin Underhill\/Lowering the Bar post:<\/p>\n

\u2660<\/p>\n

Board Strikes Down Rule Requiring Employees to Be \u201cPositive\u201d<\/em><\/p>\n

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\"Bill<\/p>\n

<\/a>The Monty Python sketch \u201cHappy Valley\u201d (video<\/a>;\u00a0audio with F-bomb<\/a>)\u00a0starts like this:<\/p>\n

Once upon a time, long, long ago, there lived in a valley far, far away in the mountains, the most contented kingdom the world had ever known. It was called \u201cHappy Valley,\u201d and it was ruled over by a wise old king called Otto. And all his subjects flourished and were happy, and there were no discontents or grumblers, because wise King Otto had had them all put to death along with the trade union leaders many years before.<\/em><\/p><\/blockquote>\n

A great scene follows in which a man is convicted of\u00a0violating\u00a0the Happiness Act, which everyone but him thinks is hilarious.<\/p>\n

That seems appropriate to start off this post about the National Labor Relations Board\u2019s ruling on April 29<\/a> that a company cannot have a rule requiring\u00a0its employees to be\u00a0\u201cpositive,\u201d or more specifically\u00a0\u201cto maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.\u201d Like in Happy Valley, the rule didn\u2019t\u00a0and couldn\u2019t mandate actual happiness, it just threatened punishment for anybody who didn\u2019t\u00a0act<\/em> \u00a0<\/em>happy enough.<\/p>\n

Section 7 of the National Labor Relations Act (summary PDF<\/a>) says that employees have the right to organize, bargain collectively, and \u201cengage in other concerted activities for \u2026 mutual aid or protection,\u201d or not to do those things if they don\u2019t want to. Section 8 then forbids employers from doing things that interfere with those rights. The NLRB is the agency that enforces the Act, partly by ruling on complaints like the one involved here. (You now know everything I do about this topic.)<\/p>\n

In this case the\u00a0union complained, among other things, that the\u00a0Happiness Rule was ambiguous and could be interpreted by an employer to preclude any (my words here) griping, bitching, and\/or moaning about work conditions, and that it was broad enough to jeopardize or \u201cchill\u201d even justified collective griping, bitching, and\/or moaning. The Board agreed:<\/p>\n

We find that employees\u00a0would reasonably construe the rule to restrict potentially\u00a0controversial or contentious communications and discussions,\u00a0including those protected by Section 7 of the Act,\u00a0out of fear that the Respondent would deem them to be\u00a0inconsistent with a \u201cpositive work environment.\u201d<\/p><\/blockquote>\n

You should be aware that it distinguished between this situation and narrower rules that prohibit things like \u201cinsubordination\u201d or a negative attitude that is actually \u201cdisruptive \u2026 or has a negative impact on guests.\u201d That isn\u2019t protected conduct. But the Board decided this one was sufficiently broad to either punish protected conduct or discourage it, and that this was enough to invalidate the rule:<\/p>\n

[E]mployees would read the rule in\u00a0context with other work rules, found unlawful here, prohibiting\u00a0employees from \u201carguing\u201d and from making \u201cdetrimental\u201d comments about the [employer]. Because\u00a0labor disputes and union organizing efforts frequently\u00a0involve controversy, criticism of the employer, arguments,\u00a0and less-than-\u201cpositive\u201d statements about terms\u00a0and conditions of employment, employees reading the\u00a0rule here would reasonably steer clear of a range of potentially\u00a0controversial but protected communication in\u00a0the workplace for fear of running afoul of the rule.<\/p><\/blockquote>\n

You should also be aware that your workplace may well not be subject to the NLRA, although you might or might not be able to argue for\u00a0similar protections in some circumstances under the First Amendment. Or you may be an \u201cat-will\u201d\u00a0employee, in which case you\u2019re probably screwed. Like I said, you now know everything I do about the topic, basically, so you must gripe at your own risk.<\/p>\n

As this article<\/a> on the decision points out, there are in fact \u201cobvious benefits to maintaining a positive, carefree work environment,\u201d including but not limited to increased productivity (all else being equal). To maximize those benefits, though, the positivity should be real. Somebody may have missed the memo on that, but it\u2019s worth circulating again.<\/p>\n

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